The not-for-profit organization as lobbyist.
WHEREAS-free and open access to government is an important matter o-f public interest;
AND WHEREAS lobbying public office holders is a legitimate activity;
AND WHEREAS it is desirable that public office holders and the public be able to know who is engaged in lobbying activities;
AND WHEREAS a system for the registration of paid lobbyists should not impede free and open access to government;
NOW THEREFORE the federal and six provincial governments have enacted legislation requiring lobbyists to report their activities. Toronto is leading the way in creating a municipal equivalent. So, even if you don't think your organization lobbies, read on. Many not-for-profit organizations will be surprised to find that they are considered to be lobbyists and might be required to register and report on their own activities.
Lobbyist legislation is generally seen as a public good--it's hard to argue with the underlying goals of government openness and accountability. Lobbyist legislation provides all of us, including not-for profit organizations, with electronic access to the lobbyist registry so we can find out who is lobbying whom. That may be important if your organization is trying to keep track of who is wading in on an issue that is key to its mission. But that is only half the story.
Not-for-profit organizations are captured by much of this legislation. The federal government and the governments of British Columbia, Ontario, and Newfoundland have all passed lobbyist legislation that not-for-profit organizations must comply with. Not-for-profit organizations in Alberta and Quebec that serve industry, unions, professional, or profit-seeking enterprises are captured by lobbyist legislation in those provinces. On the other hand, not-for-profit organizations in Nova Scotia are specifically exempted from that province's lobbyist legislation. Saskatchewan, Manitoba, and New Brunswick have no lobbyist legislation.
Many communications that not-for-profit organizations take for granted in dealing with government officials may fall within the definition of lobbying. Any not-for-profit or charitable organization that communicates with anyone in government needs to pay attention to the federal Lobbying Act and any provincial or municipal legislation that might apply to them. If your organization already lobbies or decides to start, check out the federal government's "Lobbyists' Code of Conduct" available at www.ocl-cal.gc.ca.
So, What Exactly is Lobbying?
Generally speaking, lobbying includes any communication with a government official that might influence a decision that official might make. Communication can usually take any form, verbal or written, including email, telephone, mail, or in-person communication. These can be casual communications or more formal ones. Definitions sometimes also include urging others to communicate with the government--what we sometimes think of as grass-roots lobbying. So, if you are calling on the members of your organization to write their MLA or MP or are taking out ads in newspapers calling the public to action, you may be lobbying.
The definitions of lobbying tend to include any of these sorts of communications if they deal with developing legislation, introducing a Bill, amending regulations, or awarding contracts or grants--the sorts of things we often think of as lobbying. According to The Office of the Commissioner of Lobbying of Canada, it also captures enquiries about a specific application for a grant including asking if additional information is required to have an application approved. Lobbying legislation in some provinces goes further and includes communicating about directives and guidelines.
All current Canadian legislation contains a few exemptions from communications that must be counted and reported. While the wording differs from statute to statute, definitions of lobbying tend to exclude communications for the purpose of getting information that is publicly available (like funding applications); enquiries about the terms and conditions of programs or the application process for obtaining grants; and communications about the enforcement, interpretation, or application of statutes and regulations. Submissions before committees that are open to the public and that are recorded are usually excluded as well.
So, What Should Our Organization Do?
Step 1: Find out if your organization is a lobbyist.
Get on top of the legislation that might apply to your organization. You need to get copies of the legislation (both the statute and any regulations), interpretation bulletins, and advisory opinions. Then, you need to read the definitions very carefully. The meaning of terms like lobbyist, lobbying, communications, and payment are critical to understanding the legislation. But those terms vary from Act to Act--jurisdiction to jurisdiction. Check to see if not-for-profit organizations (sometimes referred to as voluntary organizations, societies, or other terms) are exempt from the Act.
Step 2: Find out if the applicable legislation sets a minimum level of activity that must take place before registering and reporting is required.
If not-for-profit organizations are captured by the legislation and your organization's communications fall within the definition of lobbying under federal or provincial legislation, you need to determine if the jurisdiction has any sort of threshold test. Threshold tests set out how much lobbying you can do before you have to report your activities. Sometimes the threshold test is stated in the legislation, but often, it is set by regulation or even an interpretation bulletin. Typically, the threshold is the equivalent of 20% of a person's time. That means that if more than one person is involved in lobbying on behalf of your organization, you have to add up everyone's time to see if it is the equivalent of 20% of one person's time. Occasionally, a specific number of hours of lobbying is set as the threshold. In Alberta, for example, the threshold is 100 hours of lobbying per year.
Step 3: Put a system in place to keep track of your lobbying activities.
If your organization engages in lobbying, you need to start keeping track of it. Many not-for-profit and charitable organizations may find it onerous to keep track of all their communications so that they can determine if they exceed the threshold test or not. However, if you think your organization might be approaching the threshold, the organization would be well-advised to start keeping track. Once it exceeds the threshold, it must keep track.
Step 4: Find out how to register and report.
If your organization does engage in communication activities that exceed the threshold test, find out how to register and report. Don't let this get away from you. The time limit for registering under the federal Lobbying Act is only two months. Depending on the frequency of your lobbying activities, you may need to report on them monthly.
Reporting requirements vary from legislation to legislation and are not terribly onerous. Most only call for activities to be reported in general terms--the names of people in your organization who are involved in lobbying, the government agency lobbied, the topic, and the type of communication used (e.g., mail, telephone, email, in-person meeting). Visit the online directory of lobbyists for your jurisdiction to see how other organizations have reported to get an idea of what is required. Typically, reporting doesn't require the specific names of government officials, the dates and places of communications, and nature of the communication for each incident. However, the new federal Lobbying Act does call for those sorts of details if you engage in a pre-arranged, oral conversation with a senior government official--a Minister, Deputy Minister, Associate Deputy Minister, head of an agency, or someone of comparable rank. The federal Commissioner of Lobbying can double check your report with the public office holder you talk to, so expect those office holders to record the meeting, take notes, or have another person present who does.
Step 5: Set up a reminder procedure.
Organizations also need to keep track of reporting deadlines to ensure that they don't miss them. Under the new federal rules, reports may have to be filed as frequently as monthly. So, make a note of filing deadlines on your organizational calendar or other tickler system to remember key dates.
Are the Results Worth the Effort?
Like many efforts to reform government, lobbying legislation has some unintended and sometimes counterproductive consequences--in this case, for not-for-profit organizations.
Lobbying legislation tends to favour two groups: those who do very little lobbying and therefore don't have to report, and those who do a lot and have the resources to maintain the records needed to report on a timely basis. But the legislation is more onerous on organizations that fall in the middle. They do enough lobbying to pass the threshold test but have few resources to devote to tracking and reporting those activities. Is the greater public good served by drawing scarce resources away from advancing the organization's mission?
Many not-for-profit organizations work under grants and contracts that require a great deal of consultation with government officials. How is the greater public good advanced by making these organizations keep track of these communications and sorting out the ones that have to be reported from the ones that don't?
All lobbyist legislation currently puts the onus for reporting lobbying on the lobbyist. But if the purpose of lobbyist legislation is to have more open and accountable government, why isn't the onus on government officials to account for their decisions? Why should we, as citizens, either individually or collectively, have to account for communicating with our elected officials and those who run government departments and agencies? Isn't that a basic right of citizenship?
Requiring lobbying to be reported by lobbyists has the effect of discouraging important interaction between citizens and their elected representative. The sheer amount of work involved in tracking and reporting lobbying may be onerous for many not-for-profit organizations and is bound to discourage some from communicating with government officials. The new rules for federal lobbying that require more detailed reporting on pre-arranged oral communications with senior officials will have an even more chilling effect on government-community engagement. Since the new rules impose a burden on them to keep track of conversations so they can verify the reports that get filed, senior officials will be inclined to limit those conversations--to be very selective about whom they see. Won't this make it even harder for governments to stay in touch with the rest of us?
Lobbyist registration legislation has come about because lobbyists are perceived as having an undue influence--even a corrupting influence--on the decisions of government officials. That may well be the case in a few instances, but it is hard to see how the registration systems do anything to remedy that. Indeed, they make all communications seem suspect. How do we sort out the ones we need to worry about from the ones we don't?
Transparency and accountability are, no doubt, good things in their place. But shouldn't we be asking our government officials to be transparent and accountable, not the people they are talking to? Shouldn't we be asking officials to explain and justify their decisions? Do the results of their deliberations--laws, policies, programs, and processes--make sense? Who gets what kind of benefit from their decisions? What are the results and impacts of what they do? If we must, we could ask them to list who they've communicated with along the way. Ironically though, as it stands now, lobbying registration legislation directs our attention to who is communicating with our governments and distracts us from holding those governments accountable for their decisions.
Lois E. Gander, Q. C., is a Professor with the Faculty of Extension, at the University of Alberta in Edmonton, Alberta.
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|Title Annotation:||Feature Report on Charities Law|
|Author:||Gander, Lois E.|
|Date:||Mar 1, 2009|
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